Document NEJnREX3eZoVv1zzeV9JpZr3w

copy CAUSE NO. 2000-05-1962-C AURORA DE LA GARZa'dIsT. CLE$k JAN 1 8 2001 DISTRH^SPN!f*>UNTY, TEXA' ROBERT HENRY VILLARREAL, Individually and as Personal Representative of the Heirs and Estate of JOHN HENRY VILLARREAL Plaintiffs, vs. GAF CORPORATION HOLDINGS, INC.), ET AL. Defendants. IN THE DISTRICT COURT OF CAMERON COUNTY, TEXAS 197th JUDICIAL DISTRICT MEMORANDUM OF LAW OF DEFENDANT UNITED STATES GYPSUM COMPANY IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE EVIDENCE AND ARGUMENT RELATING TO MIRIELLO ISSUE Defendant United States Gypsum Company ("U.S. Gypsum") hereby submits this memorandum of law in support of its motion in limine for an order excluding any evidence or argument relating to a Ben Miriello, a letter written by him or the matters raised in that letter. I. INTRODUCTION Plaintiff may seek to introduce a copy of a letter written by Mr. Miriello to U.S. Gypsum, dated June 8, 1950 (attached as Exhibit A). In that letter. Mr. Miriello asserts that his father worked in a U.S. Gypsum facility, was occupationally exposed to raw asbestos fibers and died as a result of his exposure. Plaintiff presumably offers this letter to demonstrate U.S. Gypsum's knowledge in 1950 of the alleged danger of exposure to asbestos. This evidence, however, is inadmissible for the following reasons: (1) Mr. Minello is not competent to testify to the matters discussed in his letter due to his lack of personal, knowledge; (2) the letter consists of multiple layers of hearsay; (3) the letter is irrelevant to any material issue in this case due to the striking differences between plaintiff's alleged exposure and the alleged exposure of Mr. Minello's father; and (4) any probative value the letter may have is substantially outweighed by its potential to unfairly prejudice, confuse, and inflame the jury. II. ARGUMENT A. The Miriello Letter Should Be Excluded Because Mr. Miriello Is Not Competent To Testify To The Matters Discussed Therein. The letter should be excluded because Mr. Miriello is not competent to testify to the matters discussed therein. He lacks both the personal knowledge necessary to form a foundation for lay testimony and lacks the expertise to testify to the medical conclusions expressed in his letter. A witness may not testify to a matter as to which he lacks personal knowledge. Rather, the witness must actually have perceived or observed the event or condition about which he seeks to testify. Accordingly, Mr. Miriello is not competent to testify regarding his father's employment and alleged exposure to asbestos, due to his lack of personal knowledge regarding these allegations. In addition, Mr. Miriello's assertions regarding the cause of his father's death must be excluded due to plaintiffs inability to qualify Miriello as an expert in the field of medicine. An expert witness is one who brings to bear scientific, technical, or other specialized knowledge that will assist the jury in understanding the evidence or in determining a fact in issue. There is no evidence that Miriello had any medical training or was in any qualified to provide a medical opinion on the causes or nature of his father's condition. Moreover, as discussed below, due to the dissimilarity of conditions, any opinion, even assuming that expert qualifications could be established, would be inadmissible as it could not be applied to the evidence in this trial. F \CCR\Cameron\Y iliarreal. John\LISG-Memo-Mmello.doc B. The Miriello Letter Should Be Excluded Because It Contains Multiple Layers Of Hearsay. In instances in which hearsay is included within hearsay, the statement is inadmissible unless each part of the combined statement conforms with an exception to the hearsay rule. The Miriello letter is itself hearsay, in that it is an out-of-court statement submitted for the truth of the matters asserted. Moreover, the letter contains additional layers of hearsay in that it repeats statements made by persons other than its author. Specifically, to the extent that the letter purports to recite information that may have been obtained from a physician, it must be excluded as no hearsay exception justifies its admission. In short, admission of the Miriello letter into evidence would allow plaintiff to introduce the conclusions of an unidentified and unavailable physician through an equally unavailable, and medically unqualified, declarant. This would wholly defeat the protections provided by the hearsay rule and the right to cross-examine adverse witnesses. Other courts have found that the Miriello letter is inadmissible hearsay. See State of Maryland v. Keene Corp., No. 1108600, Tr. at 6016 (Md. Cir. Anne Arundel Cty., Jan. 8, 1991) (attached as Exhibit B). There, the court found that the letters lacked the necessary indicia of reliability, and could not properly be admitted to show notice. See also Jacobs v. OwensComing Fiberglas Corp., No. 97-4-13222 (Tex. Dist., Calhoun Cty.) (excluding letter, which "is talking about the grief of somebody and that's basically in the nature of hearsay anyway . . ."). For the same reasons, this Court should exclude the Miriello letter. C. The Miriello Letter Should Be Excluded Because It Is Not Relevant. The Miriello letter does not tend to'pfove or disprove any fact at issue in this action and is. therefore, irrelevant. The issue in this proceeding in whether U.S. Gypsum committed a tortious act in selling construction products that contained, as one ingredient, some F'\CCR\Cameron\Viliarreal. John\l!SC-Memo-MineUo doc amount of asbestos. Accordingly, one potentially relevant issue is what U.S. Gypsum knew, prior to the sale of the products allegedly at issue, about any alleged dangers associated with application of the products. Knowledge relating to dissimilar factory conditions is simply irrelevant. See County of Anderson v. United States Gypsum Co., No. CIV-3-83-511, Tr. at 1324-25 (E.D. Tenn. Feb. 26. 1985) (noting lack of probative value of Miriello letter due to extreme levels of exposure suggested by document) (attached as Exhibit C), defense verdict aff'd sub nom. Anderson County' Bd. of Educ. v. National Gypsum Co.. 821 F.2d 1230 (6th Cir. 1987). The Miriello letter is irrelevant in that, even taken at face value, it discusses the effect on a factory worker of high-level exposure to raw asbestos. Plaintiff, on the other hand, was alleges exposure only to finished U.S. Gypsum asbestos-containing products. Accordingly, in light of the dissimilarities between the alleged conditions of exposure of Mr. Miriello's father and that of plaintiff, the Miriello letter is irrelevant. In addition. Mr. Miriello's allegations themselves reveal that a manufacturer other than U.S. Gypsum was responsible for his father's exposure. Mr. Miriello's letter states that his father worked at the Jersey City facility in the early 1930s. U.S. Gypsum, however, did not acquire the facility in questions until 1936.17 In short, U.S. Gypsum had no way of knowing the specific conditions or the extent of the senior Miriello's exposure to asbestos. Accordingly, the Miriello letter even lacks probative value as to U.S. Gypsum's knowledge of the alleged dangers of factory conditions. D. Even If This Evidence Is Deemed Minimally Relevant, Its Probative Value Is Far Outweighed By Its Prejudicial Effect. J./ A length) stud) of the Jersey City plant, conducted only a few months after U.S Gypsum acquired the facility, lists more than 200 employees involved in the manufacturing operations there. No one named Miriello is listed. F\CCR\Cameron\Viliarrsal. John\USG-Memo-Minello.doc -4- Courts mav exclude relevant evidence where its probative value is outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. The Minello letter should be excluded because inflammatory accusations would unfairly prejudice U.S. Gypsum and would confuse and mislead the jury. The Miriello letter has little or no probative value as to any issue in this case. However, the letter is fraught with bitter, emotional and conclusory allegations regarding his father's death, and has no foundation in Miriello's personal knowledge. In short, the letter is designed to and would serve to unfairly inflame and prejudice the jury in the present litigation, and accordingly, must be excluded. See County of Anderson, supra. 1325-26 ("any probative value this testimony in [Mr. Miriello's] deposition and this letter has is substantially outweighed by the danger of prejudice and confusion of the issues here and is therefore misleading to the jury"): State of Maryland, supra (Miriello letter would unfairly prejudice jury). F \CCR\CameronW illarrea!. John\USG-Memo-Mtnello.doc -o- III. CONCLUSION For the foregoing reasons, U.S. Gypsum respectfully requests the Court exclude any evidence or argument relating to Ben Miriello, the letter written by him or the matters raised in that letter. Respectfully submitted, POWERS & FROST, L.L.P. James H. Powers Texas State Bar No. 16217400 Sharia J. Frost Texas State Bar No. 07491100 Gwendolyn S. Frost Texas State Bar No. 07488750 2600 Two Houston Center 909 Fannin Houston, Texas 77010 Telephone: (713) 767-1555 Facsimile: (713) 767-1799 ATTORNEYS FOR DEFENDANT UNITED STATES GYPSUM COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct of Defendant United States Gypsum Company's Memorandum in Support of Motion in Limine has been forwarded to Plaintiffs' counsel of record either by first class mail, return receipt requested, delivery or facsimile on this the i?~^- day of . __________ , 2001. F \CCR\Cumeron\Vilianeai. John\l!SG-Memo*Minello doc -6- Exhibits for: Memorandum of Law of Defendant United States Gypsum Company in Support of Motion In Limine to Exclude Evidence and Argument Relating to Miriello Issue Exhibit A 218 Grand Street Jersey City 2, New Jersey 8 June 1950 United States Gypsum company Foot of Henderson street Jersey City 2, New Jersey Dear Sirs: Z vast to congratulate you asd your wonderful product. Asbestos & Asbestos Shingles. As advaacaaaat tor civilization. True--we have had it around for years but I've just stopped t4raaliza what a wonderful produet it ia. I like the advancement of civilization--at time? I don't think va have' progressed enough. Then when Z think of hew such advancement as yours has hindered us-Z'd like to return to the Caveman era--where health was preserved and man lived beyond the SO yr mark. Dad worked is your plant seme fifteen years ago. As Z remember he had a choice of two jobs at the time--one in a cigar factory on Montgomery Street or a job in your plant. Ha chose your plant (in spite of the fact that it was far lass pay) because it was so very dose to home. Z HSGHXT the day he set foot in your plant. Dad was a cabinet maker by trade, but due to the lack of work in his trade he took any job to keep bread -2- on the Uhl* far us - his children. Be vas laid-off due ta a slack pariad in ycur plant--scae yaars ago. Ha navar returned to your plant--for ha had gained employment elsewhere--but the dasaga vas done--ha spent a few nisarahle yaars is your rat trap. About two yaars ago va noticed ay Dad's health vas not up ta par. He beeaaa of breath-but ha being one never ta ccsplain--Jcept it unto himself for a long tiaa. Soon it beeaae noticeable and unbearable for hia. Ha tooX hia ta a doctor--then a chest specialist who indorsed us he had AS8EST0S00S. Unable to get around ha quit his job. Soon ha beeaae bed ridden. His breathing baeoaiag sore and aora difficult. Soon an oxygen tan vas ordered by his doctor to be used when necessary. Then shortly he vas using it constantly (did you ever see scaeone gasping for air--and not being able to help hia--its not a pretty' thing to see.) After suffering a good deal--Dad passed avay on March 19, 1949. The less of Dad vas an ordeal for us but acre of an ordeal for Mother. She fell sick after his death and nov she aay leave us sooner than ve know of. I feel that your fira is vholely responsible for ay Dad's death and aether's illness. Had he not vorked in your plant ha vould be vith -3- U3 today and would have didtaen years od hmalthy, happy lide bedore hia to enjoy. He van a picture od health--having no ailments cd any kind. Be never was sick a day in hia lide--char in unril the eddeers od Asbastesous hit hia. It are hia lungs away. He. vaa like a drowning nan---I knew he was drowning bur there was nothing Z could do but pray dor hia. Our will never be the sane and we hw-a you to blase dor that. Sie purpose od this lettar is to tall you od your negligence in preventing this drea happening to us and Z hope to prevent it dram happening to other damilias--and it will less you check your plant for Safety measures. You see my Dad vorkad dor your firm back in 1S3S and suddarj^d a lung condition adtar laaving your employ. His doctors--the best ve could find--Dr. Hatturi and Dr. Blum can bear me out that hja Asbastesous condition was eausa ed his death. So dor the sake of Sad and Humanity--plaasa check, your plant dor suedt unhealty conditions and do all in your paver to save others dram suddering as my Dad did. Reaeabar the little eddort on your part will save lives and money. Precaution is better than a care--therm was none dor dad. thank you dor taking time out to read this I remain-- Yours truly. Mr. Ban S. Kirimllo